Visa Officers can Overrule AEOs

The Federal Court has ruled that a visa officer is entitled to override an opinion by the Department of Human Resources and Skills Development (“Service Canada“) that an arranged offer of employment is genuine.

In Ghazeleh v. Canada (Citizenship and Immigration), the Court had to determine whether a visa officer erred in awarding a Federal Skilled Worker Class applicant zero points for Arranged Employment because the officer was not satisfied by Service Canada’s Arranged Employment Opinion (“AEO“).  Specifically, the officer had concerns with the employer’s ability to employ the applicant as the company was losing money.  The applicant was unable to alleviate the officer of his concerns.

At Federal Court, the applicant’s lawyer argued that the visa officer erred in overriding the AEO.

The Court, however, disagreed, and stated that Service Canada’s opinion is only the first step in the validation of an employment offer, and does not end the inquiry.  Citing Bellido v. Canada (Minister of Citizenship and Immigration), the Court also noted:

HRDC validation is not, as the Applicant submits, sufficient evidence of arranged employment. Such validation does not remove the obligation of the Visa Officer to assess whether the Applicant is able to perform the job described in the validation.

In this case, the visa officer was not satisfied that the applicant could perform the work sought because the officer concluded that the employer’s financial circumstances meant that it could not even pay the applicant to do work.

The Court described the division of responsibilities between Citizenship and Immigration Canada and Service Canada as being:

It is the Minister of Citizenship and Immigration who is accountable, legally, for the decision to grant a visa.  To conclude that he was bound by the HRSDC opinion would be either an impermissible delegation of the Minister’s statutory obligations under the IRPA or a fettering of the Minister’s discretion.  To conclude, it is the Minister of Citizenship and Immigration who makes the decision, not the Minister of HRSDC.  HRSDC rather, offers an opinion.

If that is the case, then there’s a lot of time and money being spent on something to obtain from Service Canada something that is apparently just an “opinion.” While I appreciate that the decision to issue a visa is ultimately Citizenship and Immigration Canada’s (“CIC“), considering the amount of documentation that employers provide to Service Canada to obtain AEOs (and Labour Market Opinions), as well as the fact that Service Canada officers actually speak with the employer (something almost unheard of at CIC) to determine the genuineness of job offers, I think that there should be clear guidelines as to when CIC can overrule Service Canada on their area of expertise.  This is only logical considering that administrative law is based on the concept of specialized tribunals with expertise in their respective areas making decisions, and it is Service Canada which is trained to examine the  Canadian labour market and an employer’s capabilities.


Federal Skilled Trades Class to be Capped at 3,000 Applicants

As previously discussed here, Citizenship and Immigration Canada (“CIC“) will be introducing a new Federal Skilled Trades Class (“FSTC”), which will facilitate the immigration of certain skilled tradespersons in Canada.  The Government of Canada originally “announced” the creation of the FSTC in August through the publication of regulatory changes, however, CIC today released new information which will be relevant to prospective applicants.

The FSTC will be open to individuals with experience in the following National Occupation Classification (“NOC“) B occupational areas:

  • Industrial, Electrical and Construction Trades;
  • Maintenance and Equipment Operation Trades;
  • Supervisors and Technical Occupations in Natural Resources, Agriculture and Related Production;
  • Processing, Manufacturing and Utilities Supervisors and Central Control Operators;
  • Chefs and Cooks; and
  • Bakers and Butchers.

Applicants to the FSTC will be required to meet the following four minimum requirements:

  1. Be working in Canada, or possess a LMO-supported offer of employment from up to two employers in Canada of at least one year duration, or possess a Certificate of Qualification from a provincial or territorial Apprenticeship Authority;
  2. Meet the same minimum language threshold as required by the concurrently to be introduced new Federal Skilled Worker Class, namely a 7.0 on every language ability;
  3. Have twenty-four months of work experience (after qualification/certification in the country where the work was performed, where applicable) in the same skilled trade as which they are applying under in the last five years; and
  4. Have qualifications that satisfy employment requirements as described by the NOC, except for certification and licensing requirements.

The FSTC will be capped at 3,000 applications in its first year.

Individuals who are keenly anticipating the launch of the new Federal Skilled Worker Program (“FSWP“) should note that when the Government of Canada in August announced the creation of the FSTC, they did not indicate that the program would be capped.  The capping of the FSTC will presumably be done through Ministerial Instructions.  I strongly believe that at the same time that these Ministerial Instructions will be published officially capping the FSTC, concurrent Ministerial Instructions will also be published capping and limiting who can apply to the new FSWP.  Prospective applicants should be aware of this possibility while they prepare their FSWP applications.

 


Important Tip for Immigrating to Canada

One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview.

The breadth of procedural fairness must be adapted to the context in which it arises (Baker, SCC, 1999). When no extrinsic evidence is relied on, it is unclear when exact;y it is necessary to afford an Applicant an interview or a right to respond.  However, there will be a right  to respond under certain circumstances. (Li, 2008 FC 1284).

In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. The application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that she should have been told that this information was missing, and been given a chance to provide what was missing. However, the Court noted that there is no duty to advise an applicant of a deficient application. As the judge noted, the process is clear. An applicant must provide a complete application.

Contrast this with what happened in Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759. There, the application was complete and sufficient. However, the visa officer rejected the application because he did not believe the genuineness of one of the applicant’s answers on the application. The Court noted that the duty of procedural fairness in the decisions of visa officers [is] at the low end of the spectrum. However, the judge also noted that where the application is adequate, but the officer nevertheless entertains a doubt on the evidence, there remains a duty to clarify the information. The judge thus allowed the judicial review.

This approach is similar to that recently taken in Grewal v. Canada (Citizenship and Immigration), 2011 FC 167.  There, an application was rejected because of a poor IELTs score.  The Court noted numerous factors that resulted in a duty to seek additional information including, 1) that the Manual specified that additional information would be required for doubts over AEOs, 2) that the language proficiency derailed the whole claim for permanent residence, and 3) that the consultant had thoroughly explained the reason for the poor test and had stated that another would be forthcoming.  Accordingly, procedural fairness dictated that a fairness letter or interview be provided.

In  Singh v. Canada, 2010 FC 1306, meanwhile,  an officer rejected a work permit application because the only documents which were submitted to support the applicant’s employment experience as a Ragi were letters.  The officer stated that she saw “many such letters which turn out to be fictitious”, and that she required “more than letters, for instance, newspaper cut outs, photos of them practicing or letters of reference, to properly corroborate claims of training, knowledge, and experience.”  The Federal Court, however, overturned this decision, noting that the applicant was not put on notice that the officer was considered with the veracity of letters, and did not request further documentation.

Conclusions

In 2011, the Federal Court released its decision in Kaur v. Canada, 2011 FC 219.  In three paragraphs, the Court provided what I think is an excellent articulation of the current jurisprudence, and what should be the starting basis for any analysis of whether procedural fairness required the providing of the applicant with an opportunity to respond to a given concern.  The Court stated that:

[24]           An officer is not under a duty to inform the applicant about any concerns regarding the application which arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 at paragraphs 23 and 24).

[25]           The onus was on the applicant to satisfy the officer of all parts of her application and the officer was under no obligation to ask for additional information where the applicant’s material was insufficient (see Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262 (F.C.T.D.), [1999] F.C.J. No. 1198 (QL) at paragraph 6).

[26]           However, the officer was obligated to inform the applicant of any concerns related to the veracity of documents that formed part of the application and the officer was required to make further inquires in such a situation (see Hassani above, at paragraph 24).

The message from the courts seems clear: visa applicants have one shot, and they should ensure that the effort that they put forward is their best, because if they do, procedural fairness will require that immigration officers provide them with the opportunity to address concerns.

If they don’t put their best foot forward, however, then their applications will be rejected outright.


Decline in Chinese Immigration to British Columbia : 渥京改政策 省推薦名額增

On Tuesday, June 29th, I was quoted in Ming Pao, Vancouver’s largest Chinese daily newspaper.

另一本地移民律師辛湉王(Steven Meurrens)則認為,技術移民及新推出的加拿大經驗類別(Canadian Experience)移民均甚多限制,有意申請人士最好另走他途,他認為PNP仍是移民最快增長點,但許多人對PNP仍認識不夠。

辛湉王 續稱,雖然近日投資移民的投資額及資產額都提高了一倍,但聯邦及省府均有充分信心,認為投資移民金額提高一倍不會影響申請人數,這是政府迅速增加收入的有 效途徑。

My comments were a response to recent Chinese immigration trends to British Columbia.

The interviewer wanted to know my response to the following statistics compiled by BC Stats:

PRC LANDINGS TO BC

Family Refugee FSWP PNP LIC Entrepreneur Investor Other Total
2009 2,269 59 1,702 872 73 101 3,977 322 9,375
2008 1,957 43 3,235 654 32 120 3,712 161 9,914
2007 2,387 90 2,872 369 6 222 2,162 151 8,259
2006 2,412 147 4,795 229 8 259 2,894 186 10,930
2005 2,065 210 7,749 52 3 209 3,306 94 13,688

It is clear that in the 2005 to 2009 period there has been a decline in PRC immigrants to British Columbia. This certainly runs counter to popular myth.

Second, that decline can be largely explained in the near collapse of immigrants under the Federal Skilled Worker Program (“FSWP“).  This decline has occurred across Canada, and is not limited to China.

Third, there has been a huge increase in the amount of immigrants under the Provincial Nominee Program.

I was also asked whether I thought that there was a deliberate effort on the part of Citizenship and Immigration Canada to keep Chinese people out. I think that the answer is clear that except for the FSWP the amount of Chinese immigrants in the other categories remain steady.  Some have speculated that this is due to Chinese people failing to meet the language requirements. In my opinion, if this were the case, then there would have ALWAYS been a low acceptance rate. Surely the amount of Chinese people that are proficient in English is equal to, if not higher than, the amount that could speak English in 2005.

The FSWP has long been in decline. The recent reduction of the amount of eligible occupations and the placing of a cap on these occupations are all signs that this will continue.

Prospective immigrants should thus seriously consider the Provincial Nominee Program.


IELTS Tests Mandatory for British and French

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Yes. Just what are they speaking in England?  Apparently, Citizenship and Immigration Canada (“CIC“) is not too sure, and will now be requiring that all British people and French people take language tests to prove that they speak either English or French if the immigration program that they are using requires proof of language.

So to the people of England, you may have invented the language, but as your former colony, we’re putting you on notice that we’re not quite sure how well you speak it.

And to the international student who graduated from a Canadian university with a honours degree in English, well, we’re sorry, but we’re not confident that our universities know how to teach the language.

Imagine the scene at the reception area of a French testing center in Paris where Parisians have to pay and sit an exam to prove that their French is sufficient for Quebec.

And to those that have said that this brings Canada in line with the practices of our “competitors,” including the United Kingdom, Australia, and New Zealand, a quick glance at their laws reveals that no it doesn’t.

Australia exempts applicant’s whose native language is English and who are passport holders of the United States, Canada, the UK, Ireland, or New Zealand.

The UK exempts applicants who are nationals of the United States, Canada, Australia, New Zealand and the former British West Indies from taking language tests.

New Zealand exempts applicants who have a post-secondary qualification taught entirely in English, and applicants who have worked in skilled employment in New Zealand for at least 12 months.

And do you know why these countries have these exemptions? Because it’s so obvious that they’ll pass the English test that they don’t want to insult their potential immigrants by making them pay and sit an English test.


The Federal Skilled Worker NOC List

Image by wburris

As part of its recent changes to the Federal Skilled Worker Program (“FSWP“), the government has changed which National Occupational Classification (“NOC“) categories are eligible under the program. In short, the FSWP requires that a prospective immigrant either have a job offer or sufficient experience in a designated NOC occupation. These are typically occupations of which there are a shortage of skilled Canadians.

The following table shows the eligible NOC categories before and after the changes. It shows which occupations have been removed, and which have been added.

NOC

Before

Now

0213

Computer and information systems managers

0311

Managers in health care

0631

Restaurant and food service managers

Restaurant and food service managers

0632

Accommodation service managers

0711

Construction managers

1111

Financial auditors

2113

Geologists, geochemists, geophysicists

2143

Mining engineers

2144

Geological engineers

2145

Petroleum engineers

3111

Specialists physicians

Specialist physicians

3112

General practitioners and family physicians

General practitioners and family physicians

3141

Audiologists

3143

Occupational therapists

3142

Physiotherapists

Physiotherapists

3151

Head nurses

3152

Registered nurses

Registered nurses

3215

Medical radiation technologists

Medical radiation technologists

3233

Licensed practical nurses

Licensed practical nurses

4121

University professors

4131

College and other vocational instructors

6241 Executive chefs Executive chefs

6242

Cooks

Cooks

7213

Contractors and supervisors (pipes)

7215

Contractors and supervisors, carpentry trades

Contractors and supervisors, carpentry trades

7216

Contractors and supervisors (mechanic trades)

Contractors and supervisors (mechanic trades)

7241 Electricians (except industrial & power system) Electricians (except industrial & power system)
7242 Industrial electricians Industrial electricians

7251

Plumbers

Plumbers

7252

Steamfitters and pipefitters

7265

Welders

Welders

7312

Heavy-duty equipment mechanics

Heavy-duty equipment mechanics

7371

Crane operators

Crane operators

7372

Drillers & blasters

Drillers & blasters

8221

Supervisors (mining)

8222

Supervisors (oil & gas drilling)

Supervisors (oil & gas drilling)

9212

Supervisors (refineries, chemical plants)

0811

Primary production managers

1122

Professional occupations in business services to management

1233

Insurance adjusters and claims examiners

2121

Biologists and related scientists

2151

Architects

3113

Dentists

3131

Pharmacists

3222

Dental hygienists & dental therapists

4152

Psychologists

4152

Social workers

 


Federal Skilled Worker Applications Cap

Photo by Josh Patton

In this first of several changes to Canadian immigration law today, the government has introduced a cap on the number of Federal Skilled Worker applications that will be considered for processing each year.

20,000 applications will be considered each year for people that do not have an offer of employment.

Within the 20,000 cap, a maximum of 1,000 Federal Skilled Worker applications per National Occupational Classification Code will be considered each year.

The NOC eligibility list is also changing. The number of occupations eligible for the federal skilled worker program has been reduced from 38 to 29. Removed occupations include mangers in finance, health care and construction, computer and information systems, university professors, and vocational instructors. Being added to the list are the following occupations: psychologists, social workers, dental hygienists, pharmacists, dentists, architects, biologists, insurance adjusters, claims examiners, primary industry production managers, and professions in business services and management.

In calculating the caps, applications will be considered on the date which they are received.

Requests made on the basis of Humanitarian and Compassionate grounds that accompany a Federal Skilled Worker application not identified for processing will not be processed.

The first year will begin on June 26, 2010, and end on June 30, 2011.

The Official Gazette detailing the new rules can be found here.


Canadian Experience Class Applicants Must Take the IELTS

Photo by nathan17

The final of today’s series of changes to Canadian immigration law is the introduction of a requirement that Canadian Experience Class applications must be accompanied by the results of the principal applicant’s English or French language proficiency assessment. The same is true for Federal Skilled Workers.

Only test results from a third-party language testing agency designated by the Minister of Citizenship, Immigration and Multiculturalism will be accepted.

No word yet if any of these institutes have been designated: